DiPino v. Davis

WILNER, Judge. This is the second appearance of this case before this Court. It involves an action filed in the Circuit Court for Worcester County by Wayne Davis against the Mayor and City Council of Ocean City (the City), Bernadette DiPino, a police officer employed by the City, and Donald Turner, a District Court Commissioner. The action was first filed in December, 1991, but we are concerned here with an amended complaint filed in April, 1995.

Mr. Davis’s complaint, alleging both Constitutional violations and common law torts, arises from his arrest on July 6, 1991, upon a charge of hindering and obstructing Officer DiPino and a fellow officer, Alice Brumbley, in the performance of their duties. The arrest was pursuant to a warrant and Statement of Charges issued by Commissioner Turner upon application of DiPino. At issue before us is whether (1) the evidence sufficed to establish the violations and torts alleged, (2) if so, DiPino and the City are immune from liability, and (8) certain claims against the City were preserved for appellate review. Some of the underlying facts were in dispute, mostly as to what Davis knew about DiPino and what was said by Davis and DiPino at various times. ²⁴ BACKGROUND During the period most relevant to this case—from the spring of 1990 through the first week of July, 1991—Officer DiPino worked as an undercover narcotics agent for the City police department.

Her job required her to identify drug dealers and purchase drugs from them, and she therefore had to develop contacts and build trust with potential sellers. The plaintiff, Wayne Davis, was a bartender at the Inlet Lodge on the Ocean City boardwalk, where he had worked for about 10 years. DiPino first learned of Davis through an informant, who told her that he had seen marijuana in Davis’s apartment. Nothing immediate came of that information.

In the spring of 1990, DiPino met Davis on the boardwalk and, as part of a “reversal” operation—an attempt to sell, rather than buy, drugs—she told him that she had some marijuana for sale and wanted to trade it for cocaine. She said that they discussed such a trade and exchanged telephone numbers, that, as a result of that conversation, Davis became a “target,” and that she made a number of attempts during the summer of 1990 to consummate a drug trade with Davis, without success. 1 We need not recount the several ensuing contacts between DiPino and Davis. It will suffice to say that, by the end of September, 1990, Davis had sufficient information to believe that DiPino was an undercover police officer, that DiPino suspected that Davis was aware of her occupation, and that, as a result, she terminated her effort to engage him in a drug transaction. Some of Davis’s suspicion arose from his having seen DiPino twice in the company of a person— Sergeant Holtzman—whom he knew to be a police sergeant; some of it came from his seeing her leave the courthouse and learning that she had just testified in a drug case.

The event that ultimately led to Davis’s arrest occurred in the late hours of May 11-12, 1991. Davis had just closed the ²⁵ bar and was standing somewhere in the vicinity of the boardwalk and Wicomico Street with his friend, Frederick King. The area, according to DiPino, was populated with drug users, drug sellers, and “biker gangs.” DiPino and Detective Brumbley had just left a bar where, in their undercover capacities, they had met with two “targets.” When Davis saw DiPino and Brumbley, about ten feet away, he said something to King indicating that the women were police officers. Precisely what was said and how it was said were in dispute.

According to DiPino and Brumbley, Davis said, in a voice loud enough for them to hear some nine to ten feet away, that they were “nares,” “undercover detectives,” “undercover officers,” or “undercover cops.” Davis said that, upon spying the women, he told King, in a normal conversational tone, “[l]ook, those were the two girls that were going to come in last year and give me some pot and have Mr. Holtzman bust me, right?” When King asked if they were “nares,” Davis responded “I don’t know what they are,” that “[t]hey could be under cover or anything.” Whatever was said, DiPino believed that Davis made the statement in a voice loud enough to indicate to her an intent to “blow our covers.” Although it appears that there was not a large crowd in the area, it being late at night, DiPino said that she noticed some “bikers” who gave them “dirty looks.” Concerned for their safety, DiPino and Brumbley got into their car, left the area, and returned to the police station, without incident. There was no evidence that the particular “targets” they were pursuing that evening were still in the area when the comment was made or, if they were, that they overheard the remark; there was no evidence that Frederick King was a particular “target.” DiPino believed, however, that “anybody that was standing out on the street was a potential ... target.” She also believed that, by his loud statement to King, Davis had compromised her investigation, her ability to continue working undercover, and her safety, and that, as a result, he had committed some kind of crime, although she was unsure of what it was. She never contacted the State’s Attorney’s office to seek legal advice but instead conferred ²⁶ with a District Court Commissioner, who informed her that Davis could be charged with “hindering.” Despite her immediate concerns, DiPino put the matter on the “back burner.” She could have preferred charges against Davis at any time, but for two months she declined to do so. On July 5,1991—during one of the busiest weekends in Ocean City—she applied to Commissioner Turner for a Statement of Charges against .

Davis. In her application, she stated that Davis had said to an unknown white male: “Look those two girls are nares.... This statement was said in a loud enough voice as so the Det’s, approx. 3 yds away, could hear and any passerby could also hear placing the Det’s in extreme danger and compromising their cover.” Upon that application, Commissioner Turner issued a warrant for Davis’s arrest and a Statement of Charges charging Davis with two counts of the common law crime of obstructing and hindering, one count as to DiPino and one as to Brumbley. In each, Davis was charged with “intentionally and knowingly obstructing] and hindering] a police officer ... in the performance of the victim’s lawful duties____” Pursuant to the arrest warrant, Davis was arrested at the Inlet Lodge on Saturday evening, July 6, 1991; in the presence of his customers, he was handcuffed and taken away.

He was promptly presented before Commissioner Turner, who, despite Davis’s established residence and employment in Ocean City, set bond at $50,000. Unable to post that bond immediately, Davis spent the next two nights in jail. On October 2, 1991, the day of his scheduled trial, the State entered a nol pros to both charges. As noted, this action against DiPino, Turner, and the City was filed in December, 1991.

The circuit court initially granted summary judgment in favor of all three defendants. On appeal, the Court of Special Appeals concluded that entry of summary judgment on the basis of the affidavits filed by the defendants was improper, but it affirmed the judgments on the alternative ground, raised by the appellate court on its own initiative, that the complaint filed by Davis failed to state any cause of action upon which relief could be granted. Davis v. DiPino, 99 Md.App. 282, 637 A.2d 475 (1994). We granted ²⁷ certiorari and reversed the judgment of the Court of Special Appeals, holding that it was improper for that court to raise sua sponte the issue of the sufficiency of the complaint.

We directed that the case be remanded to the circuit court for further proceedings. Davis v. DiPino, 337 Md. 642 , 655 A.2d 401 (1995). Upon the remand, Davis filed the amended complaint that is at issue now. In Count I, based on 42 U.S.C. § 1983 , he alleged that, by filing a false application, with malice and without probable cause, DiPino violated various of his rights under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

He averred, among other things, that some of the allegations in her application were untrue and that no properly trained police officer could reasonably have believed that he had committed the crime of hindering. Count II charged DiPino with comparable violations of Articles 21, 24, 25, 26, and 40 of the Maryland Declaration of Rights. Count III claimed against the City, based on respondeat superior, for the State Constitutional violations alleged in Count II. Counts IV, V, and VI charged DiPino and the City with the common law torts of false imprisonment, malicious prosecution, and abuse of process.

Count VII charged the City, under 42 U.S.C. § 1983 , with failing to supervise DiPino and restrain her from unlawfully and maliciously harassing and arresting him and conspiring to violate his Constitutional rights. Counts VIII and IX purported to be class actions against Commissioner Turner under 42 U.S.C. § 1983 and the Maryland Declaration of Rights; they were founded on an alleged pattern by Turner of violating Maryland Rule 4-212(d)(l) by issuing arrest warrants rather than summonses. Substantial monetary damages were sought against DiPino and the City; as to Turner, only injunctive and declaratory relief and, in the § 1983 action, attorney’s fees, were sought. Turner moved to dismiss the actions against him on the ground that no cause of action was stated.

That motion was granted. DiPino and the City answered the amended complaint, and, after a non-jury trial held on December 18, 1995, ²⁸ the court concluded that DiPino had probable cause to believe that Davis had committed the crime of hindering. Believing that determination to be dispositive, the court did not address the free speech claim of Davis, the common law torts pled by him, the immunity defenses raised by DiPino and the City, or any alleged damages suffered by Davis; Upon the court’s denial of his post-trial motion, Davis appealed the unfavorable verdicts. After an en banc rehearing, the Court of Special Appeals, in a seven-to-six decision, (1) vacated the judgments in favor of DiPino on the Federal and State Constitutional claims (Counts I and II) and remanded for further proceedings; (2) vacated the judgments for DiPino and the City on the malicious prosecution claim (Count V) and remanded for further proceedings; (8) affirmed the judgments for DiPino on the other intentional tort claims (Counts IV and VI); (4) affirmed the judgments in favor of the City on the Federal and State Constitutional claims (Counts III and VII); and (5) affirmed the judgments in favor of Turner (Counts VIII and IX).

Davis v. DiPino, 121 Md.App. 28 , 708 A.2d 357 (1998). Those appellate judgments were based on a number of conclusions. The Court of Special Appeals first held, on alternative grounds, that the circuit court erred in finding that DiPino had probable cause to procure Davis’s arrest. Applying Cover v. State, 297 Md. 398 , 466 A.2d 1276 (1983), the court noted that one of the elements of the crime of hindering was knowledge by the accused that a police officer was engaged in the performance of a duty, and it found no evidence in the record to support a finding that Davis reasonably believed that DiPino was engaged in the performance of police duties at the time he made his statement to King.

Mere knowledge that the person allegedly hindered was a police officer does not suffice; there also must be knowledge that the officer was engaged in performing police duties when “hindered.” Davis v. DiPino, supra, 121 Md.App. at 56-57 , 708 A.2d at 371 . Even if DiPino did entertain a reasonable belief that Davis knew that she was engaged in undercover work, the court added, Davis’s statement to King did not constitute- an act of ²⁹ hindering: merely revealing an officer’s status does not suffice as a hindering. Accordingly, the court concluded that DiPino had no reasonable basis for believing that Davis had committed the crime of hindering. Apart from the lack of probable cause, the appellate court determined that Davis had a First Amendment right to speak as he did, and that his arrest served to violate that Constitutional right.

He did not make a false statement, incite lawless action, or jeopardize national security, and, the court concluded, there was no evidence that any bystanders, other than DiPino and Brumbley, even heard what Davis allegedly said to King. It was upon those conclusions that the court vacated the judgments entered in favor of DiPino on the Federal and State Constitutional claims and remanded them for consideration of the immunity defenses that might be available to her. To guide the trial court on that immunity issue, the Court of Special Appeals concluded that (1) DiPino would have no immunity against compensatory damages for State Constitutional torts but would have immunity against punitive damages if she acted without malice; (2) the test for immunity on the § 1983 claim was whether it was objectively reasonable for DiPino to believe that her conduct did not violate a clearly established statutory or Constitutional right of which a reasonable person would have known; and (3) in that regard, (i) DiPino could have ascertained the elements of the crime of hindering and thus known whether Davis had committed that offense, prior to applying for a warrant, and (ii) DiPino would not necessarily be insulated from liability because the statements made in her application were true or because a judicial officer found probable cause to issue the warrant. Though acknowledging that the City has no immunity under Maryland law from suits based on the violation of State Constitutional rights and that respondeat superior liability had been argued, albeit briefly, to the trial court, the Court of Special Appeals nonetheless affirmed the judgments in favor of the City on the ground that Davis had not properly raised the issue on appeal.

In his brief, the court noted, Davis “presents, at best, only a glancing reference to Ocean City’s ³⁰ liability for any constitutional violations.” Id. at 79, 708 A.2d at 382 . Applying Maryland Rule 8-504(a)(5), which requires an appellate brief to include “[argument in support of the party’s position,” the court held that Davis had waived his right to complain about the matter. 2 The defendants’ judgments on the three common law tort claims were apparently based on the trial court’s conclusion that DiPino had probable cause to procure Davis’s arrest. In light of the appellate court’s disagreement on that point, those judgments could not stand on that basis. The judgments entered in favor of DiPino and the City on the false imprisonment and abuse of process claims were affirmed on other grounds, however.

With respect to false imprisonment, the court held that, as DiPino did not carry out the arrest warrant, she did not deprive Davis of his liberty and, for that reason, was not liable for false imprisonment. Nor, it held, was there any evidence that DiPino made any illegal use of the warrant, after it was issued, for an ulterior motive, and, accordingly, she had not committed an abuse of process. The judgment entered on the malicious prosecution claims was vacated, however. Because the trial court acted solely upon a finding that DiPino had probable cause to seek the warrant, it never determined whether she acted with malice, and that determination, the appellate court held, was critical.

The question of malice was important with respect to the City’s liability as well. Because the malice required for malicious prosecution is different from the “actual malice” spoken of in the Local Government Tort Claims Act (Maryland Code, § 5-303(b) of the Courts and Judicial Proceedings Article) (LGCTA), the court concluded that the judgment for the City on the malicious prosecution claim was premature. ³¹ Finally, the appellate court affirmed the judgment dismissing the actions against Commissioner Turner. As noted, those actions were based on the assertion that, under Maryland Rule 4-212(d)(l), Turner should have issued a summons, rather than a warrant, for Davis, that Turner routinely violated the Rule by issuing warrants rather than summonses, and that Davis was in jeopardy of further arrest because of likely future violations of the Rule by Turner. The Court of Special Appeals found Davis’s fear of future harm to be entirely too speculative, and, on that ground, declared that the counts against Turner failed to state a cause of action for the relief sought.

None of the parties are entirely happy with the Court of Special Appeals decision. We granted the petition for certiorari filed by DiPino and the City to determine whether (1) DiPino had probable cause to believe that Davis had committed the crime of hindering; (2) her “truthful” application for a Statement of Charges violated his right to free expression; and (3) Davis produced sufficient evidence in support of his malicious prosecution claim to show that the arrest was not supported by probable cause and that DiPino acted with malice. We granted Davis’s cross-petition to consider three other questions: (4) whether the Court of Special Appeals erred in affirming the judgments for the City on Davis’s State Constitutional claims; (5) whether it erred in declining to reverse the judgment of the circuit court because of that court’s admission of hearsay evidence; and (6) whether it erred in remanding for the resolution of immunity defenses, especially the claim of immunity regarding the State Constitutional torts. DISCUSSION Probable Cause—The Crime of Hindering All of the actions filed against DiPino and the City depend, to some extent, on the averment that DiPino had no probable cause to believe that, by virtue of his remarks to Frederick King on May 11-12, 1991, Davis had committed the crime of ³² hindering.

The judgments entered by the circuit court in favor of those defendants were based on the court’s finding that DiPino did have such probable cause, and, as noted, it was in light of that finding that the court found it unnecessary to consider and rule upon any of the immunity defenses. If, as the Court of Special Appeals concluded, that finding was legally incorrect, those judgments that have no alternative foundation in the record cannot stand. Further proceedings would be required as to them. The probable cause question is therefore central to much of this case.

Probable cause, we have held, “is a nontechnical conception of a reasonable ground for belief of guilt.” Collins v. State, 322 Md. 675, 679 , 589 A.2d 479, 481 (1991); Doering v. State, 313 Md. 384, 403 , 545 A.2d 1281, 1291 (1988). It is defined “in terms of facts and circumstances ‘sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense.’ ” Gerstein v. Pugh, 420 U.S. 103, 111 , 95 S.Ct. 854, 862 , 43 L.Ed.2d 54, 64 (1975), quoting, in part, from Beck v. Ohio, 379 U.S. 89, 91 , 85 S.Ct. 223, 225 , 13 L.Ed.2d 142 (1964); Collins v. State,, supra, 322 Md. at 679 , 589 A.2d at 481 ; State v. Smith, 305 Md. 489 , 515 n. 10, 505 A.2d 511 , 524 n. 10 (1986), cert. denied, 476 U.S. 1186 , 106 S.Ct. 2925 , 91 L.Ed.2d 552 (1986). To determine whether an officer had probable cause, under that conception,the reviewing court necessarily must relate the information known to the officer to the elements of the offense that the officer believed was being or had been committed. The officer, of course, must undertake the same analysis in determining, in the first instance, whether the person may lawfully be arrested.

That analysis requires a proper understanding of the elements of the offense, in this instance hindering. We defined those elements in Cover v. State, supra, 297 Md. 398 , 466 A.2d 1276 . We noted there that, although the crime of hindering a police officer in the performance of the officer’s duties was a statutory one in many States, it remained a common law crime in Maryland. Quoting from Lidstone, the offense of obstruc ³³ TION: (2) OBSTRUCTING freedom? [1983] Grim.

L.Rev. 29, we observed that the offense comprised three different categories of conduct: (1) positive direct obstruction, in which the officer acts directly against the defendant or the defendant’s property and is physically resisted; (2) passive direct obstruction, where the officer seeks to make the defendant act directly and the defendant refuses or fails to act as required; and (3) positive indirect obstruction, where “the police are not acting directly against the [defendant] but are acting indirectly against other citizens who are, or may be, about to commit offenses against the criminal law, and the [defendant] does an act which obstructs them in their general duty to prevent or detect crime, intending to frustrate the police operation.” Id. at 405-06, 466 A.2d at 1280 (emphasis added). In Cover , as here, the conduct at issue fell into the third category. Late at night, an undercover police officer, sitting in his car on a parking lot, was watching a man whom he thought might be preparing to break into a restaurant. The defendant, who, in the past, had often observed, accosted, and annoyed undercover officers, drove on to the parking lot, parked her car next to that of the officer, and turned off her lights.

At some point, she started her car and turned on her headlights, as if preparing to leave. The officer went over to her, identified himself, explained that he was engaged in surveillance, and asked her to leave by a certain readily accessible route and not to exit by another route that might compromise his surveillance. She initially began to leave the area in the manner requested by the officer but then turned around and left by the other route. She drove slowly by the subject of the surveillance but apparently said nothing to him.

At some point, a block away, she began honking her horn. When the officer searched for the suspect, he was gone. The defendant was charged and convicted of hindering. We reversed.

We determined that the offense of hindering comprises four elements: “(1) A police officer engaged in the performance of a duty; ³⁴ (2) An act, or perhaps an omission, by the accused which obstructs or hinders the officer in the performance of that duty; (3) Knowledge by the accused of facts comprising element (1); and (4) Intent to obstruct or hinder the officer by the act or omission constituting element (2).” Id. at 413 , 466 A.2d at 1284 . The difficult questions, we observed, arise in determining what constitutes a “duty” and what acts or omissions constitute obstructing or hindering the performance of the duty. With respect to the third category of the offense—passive indirect obstruction—we noted some division of authority as to whether there could be a hindering of an officer’s performance of duty in the absence of evidence that the person or persons who were made aware of the officer’s presence or status were then engaged in or were about to become engaged in criminal activity. For purposes of that case, we assumed, without deciding, that an officer’s duty, in a surveillance situation, includes the surveillance of lawful, as well as unlawful, activity, ie., that it was not necessary, to constitute an unlawful hindrance or obstruction, that the person being observed be then engaged’ in criminal activity.

We also assumed, for purposes of that case, that the offense included an act that deprived the officer “of the opportunity of seeing whether, in normal circumstances,” the person being observed would commit a criminal act. Even under that broad reach of the offense, however, we concluded that Cover’s conduct did not constitute hindering. Whatever Cover’s intent may have been, it was merely speculative that her conduct had the effect of actually warning the suspect of the police presence. There was no evidence that the suspect heard the horn honking or, if he did, that he would have taken it as a warning.

Accordingly, we held that “[cjontrary to the implication of the State’s argument, where the alleged hindering is as indirect as that presented here, we cannot conclude that the crime may be based solely on intent, without regard to whether there has in ³⁵ fact been some degree of hindrance.” Id. at 416 , 466 A.2d at 1285 . Also illustrative is In re Antoine H., 319 Md. 101, 108 , 570 A.2d 1239, 1242 (1990). The police went to the home of one Howard to serve an arrest warrant. The respondents, two juveniles, were in the home when the police arrived.

For about 10 minutes, they refused to open the door for the police and, when the police eventually gained access, they falsely denied that Howard was present. Howard, in fact, was hiding in the house. The respondents’ recalcitrance and deception was alleged to constitute a hindrance and obstruction and formed the basis of a petition to declare the respondents juvenile delinquents. Reversing a finding of delinquency, we noted that the police, in fact, discovered Howard on the premises and effected the arrest, and, from that, we concluded that the respondents’ conduct did not actually hinder the police.

DiPino based her assertion of hindrance on (1) the hypothesis that everyone then in the vicinity was a potential “target,” and that Davis’s remark would make it more difficult for her to arrange drug transactions with any of those persons, and (2) the “dirty looks” she received from a group of “bikers.” The second ground may be quickly dismissed. Communications that are both intended and effective to place an officer, then in the performance of an official duty, in immediate jeopardy may very well form the basis of a charge of hindering. Even assuming that Officers DiPino and Brumbley were, in fact, in the performance of some official duty, however, there was utterly no evidence of either such an intent or such an effect in this case. No overt threats or hostile moves were made against' the officers; none were encouraged by Davis; nor is there any basis in this record for a belief that Davis’s remark to King, if overheard by others, would likely encourage any hostile action toward the officers.

There is no indication from the setting that the officers were in harm’s way. They were in a well-lit public area, and DiPino said that she was aware that there were other police officers ³⁶ in the vicinity. Once the remark was made, they got into their car and left, uneventfully. The assertion in DiPino’s application for a Statement of Charges that she was placed in “extreme danger” is entirely without foundation.

As noted, the Court of Special Appeals in this case focused not on whether DiPino and Brumbley were in fact engaged in the performance of a police duty but on whether DiPino reasonably could have suspected that Davis knew, when he made his remark, that they were so engaged. It “decline[d] to fashion a rule that one who knows a person is a police officer is automatically charged with knowledge that the police officer is acting in the performance of duty, regardless of what the officer is doing—whether the officer is in church, at the doctor’s office, in a restaurant, at the movies, or lounging on the beach.” Davis v. DiPino, supra, 121 Md.App. at 56 , 708 A.2d at 371 . We share that reluctance. As we pointed out in Sawyer v. Humphries, 322 Md. 247, 258-59 , 587 A.2d 467, 472 (1991), “a police officer may be ‘on duty’ 24 hours a day in the sense that he may be on call and may under certain circumstances have an obligation to act in a law enforcement capacity even when on his own time.

That does not, however, lead to the conclusion that the officer is always acting in furtherance of the State’s business of law enforcement and that all conduct is incidental to police work.” Davis simply saw two women, whom he suspected were police officers, on the street, apparently having just left a bar and preparing to get into their car. They were not talking with anyone, and they were not doing anything that might suggest to Davis or anyone else that they were engaged in police activity. In terms of their observed and observable conduct at the time, it was wholly unreasonable for DiPino to conclude, or even suspect, that Davis was aware that she and Brumbley were then and there engaged in the performance of an official duty. Apart from Davis’s knowledge, there is no evidence that DiPino and Brumbley were, in fact, engaged in the performance of police duties when the remark was made.

DiPino’s ³⁷ complaint is that Davis interfered with her ability to engage in future “sting” operations with people whom she did not know and had no current reason to believe would participate in such ventures. The underpinning of her complaint is that one or more of those unknown people might be inclined to sell drugs but, because they were informed that she was a police officer, would refrain from dealing with her, thereby inhibiting her ability to detect criminal behavior. As we observed in Cover , there is some division of authority over whether the mere disclosure of an officer’s identity to currently law-abiding people who might, in the future, be otherwise inclined to commit a violation constitutes a hindering of the officer in the performance of a duty, but even those cases sustaining a conviction do not extend the crime as far as DiPino would have us do. A number of cases arose from speed traps, in which the defendant warned approaching motorists of the existence of the trap, and the views expressed in those cases are of interest.

In Bastable v. Little [1907] 1 K.B. 59, two constables had marked a certain section of road and stationed themselves in order to time passing cars to detect speeders. The defendant warned approaching motorists, both orally and by signs, of the trap. All three justices of the King’s Bench Division concluded that no crime had been committed. Two Justices— Alverstone and Darling—rested their decision on the lack of evidence that any of the motorists warned had, in fact, been speeding and thus on the premise that the warning had not prevented the officers from detecting any crime.

Justice Ridley concluded that, to constitute unlawful hindering, there must be either a physical interference or threats, neither of which were shown to be present. In Betts v. Stevens, [1910] 1 K.B. 1, which also involved warnings given to motorists approaching a speed trap, the evidence indicated that some of the motorists were, indeed, speeding as they approached the trap, and that the warning caused them to slow down and thus avoid detection and proof of their unlawful conduct. Justices Alverstone and Darling distinguished that situation from the ³⁸ one in Bastable and affirmed a conviction for hindering. Chief Justice Alverstone made clear the distinction: “[N]othing that I now say must be construed to mean that the mere giving of a warning to a passing car that the driver must look out as there is a police trap ahead will amount to an obstruction of the police in the execution of their duty in the absence of evidence that the car was going at an illegal speed at the time the warning was given; but where it is found, as in this case, that the cars were already breaking the law at the time of the warning, and that the act of the person giving the warning prevented the police from getting the only evidence which would be required for the purposes of the case, there I think the warning does amount to obstruction.” Id. at 7.

Justice Darling applied essentially the same distinction but as he had articulated it in Bastable: “[I]t is quite easy to distinguish the cases where a warning is given with the object of preventing the commission of a crime from the cases in which the crime is being committed and the warning is given in order that the commission of the crime may be suspended while there is danger of detection.” Id. at 8. In Warrensville Hts. v. Wason, 50 Ohio App.2d 21 , 861 N.E.2d 546 (1976), also a speed trap case, the Ohio court took a similar approach, noting, at 549: “It follows that one of the elements of obstruction is the presence of an illegal act which generates the policeman’s duty to enforce the law. An additional element is interference with intent to impede the performance of that duty. In the present case it is conceded that the defendant did not warn persons who were violating the law.

The drivers whom he signaled were not shown to be speeding. The officer was not proceeding, did not intend to proceed and did not have a basis for proceeding, against the persons warned.” See also City of Akron v. Matteson, 299 N.E.2d 315 (Ohio Mun.1972). ³⁹ That same approach has been taken in other contexts. In State v. Jelliffe, 5 Ohio Misc.2d 20 , 449 N.E.2d 810 (1982), the defendant, attending a rock concert, spotted someone in street clothes whom he recognized as a police officer. He was arrested when he told another person, in a voice loud enough to be heard by the officer, that the officer was “a cop.” Entering a verdict of not guilty, the court noted: “[T]here is no allegation that defendant’s conduct actually prevented the arrest of any persons who were then violating the law.

While it may have made detection of violations more difficult, it is equally possible that it may have inhibited the commission of crimes in the first place. Surely that is one goal of law enforcement.” Id. at 811. In State v. CLR, 40 Wash.App. 839 , 700 P.2d 1195 (1985), a vice squad officer in a pickup truck approached a woman on the street. While talking to the officer through the driver’s window, the woman agreed to engage in an act of prostitution.

As the woman went around the truck and opened the passenger door, the defendant, standing across the street and observing the scene, but unable to hear the conversation, shouted “he’s vice.” The woman closed the door and started to walk away. Reversing the defendant’s conviction for hindering, the court found that the officer was not hindered or delayed in making an arrest in that case. Although acknowledging that the officer’s future undercover work may have been made more difficult by the exposure of his identity, the court nonetheless held the evidence insufficient, noting that other “[cjourts have found that similar obstruction statutes do not apply where there was no obvious, contemporaneous, illegal activity when the warning was given.” Id. at 1197. Cases sustaining a conviction based on revealing the identity of an undercover officer usually have involved either a more direct interference or an expansive view of an officer’s duty.

In People v. Robles, 48 Cal.App. 4th Supp. 1, 56 Cal.Rptr.2d 369 (Cal.Super.1996), for example, a defendant who observed an undercover officer in the actual process of negotiating a ⁴⁰ drug- sale with a street vendor, shouted to the seller, “Get away from that guy! The guy’s a cop.” When the vendor did not immediately depart, the defendant walked up to him and said, “I told you to get away from that guy. The guy’s a cop.” The seller then left without completing the sale. There being no dispute that the defendant knew that the officer was, in fact, a police officer, the court sustained a conviction for hindering, holding that the defendant’s conduct “prevented] the officer from obtaining evidence of a crime he might otherwise have obtained.” Id. at 2 , 56 Cal.Rptr.2d 369 .

An English and a Canadian case turned on an expansive view of the officer’s duty under the relevant statute. In Hinchliffe v. Sheldon, [1955] 3 A.E.R. 406, the defendant was the son of a tavern owner who arrived at the tavern, which was also his home, after 11:00 p.m., when, under the law, the tavern was supposed to be closed. He came upon some police officers outside the tavern. The son announced his presence and also warned that officers were outside.

One of the officers knocked on the door, but the son again warned of the police. Eight minutes later, the police were admitted and, although they found a number of people inside, they found no evidence that the tavern had remained open for business after 11:00. The son was arrested and convicted of hindering. Affirming the conviction, Lord Goddard, for the Queen’s Bench Division, concluded that officers were authorized by the licensing statute to enter a licensed premises at any time for the purpose of preventing or detecting the commission of any offense against the statute, and that “[i]f they are detained from going in, that does obstruct them in the execution of their duty, because it gives the licensee, if he is committing an offence, the opportunity to get everything out of the way.” Id. at 408 .

Police raids, he said, “should be done as quickly as possible without previous warnings being given, otherwise there might as well not be a raid.” Id. In the Canadian case—Regina v. Westlie, [1971] 2 W.W.R. 417—two plainclothes police officers were patrolling a “skid row” area of Vancouver looking for beggars who, under the ⁴¹ law, were regarded as vagrants. They had recently made an arrest that had been observed by the defendant, and they confided in the defendant that they were officers and were looking for beggars. The defendant went along with them as they patrolled the area, warning people that the two were officers.

No vagrants were sighted, and the defendant was arrested and convicted for hindering. In affirming the conviction, the judges of the British Columbia Court of Appeal rejected the defense raised in Bastable, supra, that there could be no crime of hindering in the absence of evidence that criminal activity—specifically vagrancy—was occurring. They concluded, instead, that it was not necessary under the governing statute that an officer be engaged in the performance of a specific duty of detecting vagrancy at the time of the alleged offense. Judge Robertson noted that, if the sole duty of the officer at the time was to detect and arrest beggars, he might be inclined to accept the defendant’s argument, but he concluded that officers had a more general statutory duty to preserve the peace and prevent the commission of any crime and that, had the officer, during his patrol, seen any criminal activity or anyone for whom there was